Bar owners drop eminent domain lawsuit (UPDATE)

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By Paul Snyder

The owners of a Madison bar Tuesday dropped a lawsuit filed against the state for using eminent domain to acquire their property for a construction project.

The trial was scheduled to begin Wednesday in Dane County Circuit Court.

Mike Wittenwyler, an attorney in the Madison office of Godfrey & Kahn SC representing Brothers Bar & Grill owners Marc and Eric Fortney, said they wanted to do the right thing by letting the University of Wisconsin-Madison proceed with building an estimated $43 million music performance hall.

“Hopefully,” Wittenwyler said, “the Board of Regents will now follow the lead of others and do the right thing by the Fortneys with payment of their actual relocation costs and efforts to move to a new location.”

The Fortneys last year agreed to the $2.1 million the Board of Regents offered for the property. But they sued because the board used eminent domain to take the property even though the board did not have designs, a construction timeline or enough money for the project.

University of Wisconsin System spokesman David Giroux said the Board of Regents will pay the $2.1 million for the property within the next 30 days.

However, Giroux said, the sides will discuss relocation costs separately. Those costs have been a sticking point between the Fortneys and the university, with the university estimating about $150,000 and the Fortneys going as high as $1.5 million.

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According to state law, the university, in using eminent domain, has to provide a “reasonable” amount for relocation.

“That will be determined later,” Giroux said.

The lawsuit prompted a public relations campaign that included the Fortneys draping on their University Avenue bar a sign protesting the new music school. The case also inspired a bill by state Rep. Amy Sue Vruwink, D-Milladore, that would have required the UW System get approval from the Joint Committee on Finance before using eminent domain. The bill is still in committee.

The UW System last followed through with eminent domain in the early 1960s to acquire land for dorms on the southeast side of the UW-Madison campus. Giroux said the Fortneys’ lawsuit has not led to a change in the way the system uses eminent domain.

“We’ve always been extremely judicious about the way we use that authority,” he said. “Our goal and our job remains to be to look out for taxpayers, students and donors by providing a fair price for the property.”